Assessing the Legal Reaches of Executive PowerPresident Bush has invoked Article 2 of the Constitution in defense of his authorization of domestic spying after Sept. 11, 2001. Two scholars discuss this and other arguments the president has used to justify wiretaps and other surveillance.

At his news conference yesterday, President Bush said that Article 2 of the Constitution gives him as president and commander in chief the constitutional responsibility and the constitutional authority to protect our country. And after September 11th, the United States Congress also granted him additional authority to use military force against al-Qaeda. So he had legal backing, he says, to authorize wiretaps of Americans known to have terrorist connections when they were talking with people overseas. Well, is that a conventional reading of executive power or a novel one? Certainly it is one that is in dispute. We'll put those questions now to two scholars of the subject. Lou Fisher is senior specialist in separation of powers for the Congressional Research Service at the Library of Congress and author of "Presidential War Power."

SIEGEL: Let's just start--Lou Fisher first--do the president's war powers include, as he said, as Attorney General Gonzales also has said, the power to engage in signal intelligence of our enemy without a specific court order?

Mr. FISHER: I think what the administration did at first was to say the president has constitutional authority, Article 2 authority, and then as a second step they're saying that he also has statutory authority. I think this has been met by statute in the 1978 FISA statute, and I think if the administration isn't satisfied with that statute, they need to come to Congress and get amendments to it.

SIEGEL: You're saying that statute which described what should be done, should go to this special court, which was--I believe the law was passed in '78 or implemented in '79. We sometimes call it a '79 law; perhaps we're wrong.

Mr. FISHER: Correct.

SIEGEL: But that addressed this issue, and therefore you can't make that broad constitutional claim anymore.

Mr. FISHER: Not once Congress has defined national policy. I should mention these are my personal views, not my institutional views.

SIEGEL: Professor Greg Maggs, do you agree?

Prof. MAGGS: Well, I have a slightly different take on it. Congress, as you mentioned earlier, authorized the president to use military force. And just last year in the Hamdi case, the Supreme Court held that this authorization to use military force gives the president the power to take all actions that are "fundamental and accepted incidents of war"--that's the quote the court used. And I would certainly think that spying on the enemy is a fundamental and accepted incident of war. In other words, I would say that the authorization to use military force is authority which supersedes FISA.

SIEGEL: So the reasoning would be if he could be detained, why can't his conversations be surveilled overseas at some point? Lou Fisher, what do you think of that argument?

Mr. FISHER: I think it's not appropriate to take from a general statute like the Use of Force Act some implied amendment to existing statute. Now the Non-Detention Act of 1971 was quite short; it just says that no US citizen can be detained or imprisoned without an act of Congress. But as we know, the FISA act was a result of years of hearings, of reports in response to a president and his administration spying on US citizens. So...

SIEGEL: The Nixon administration...

Mr. FISHER: The Nixon administration.

SIEGEL: ....was what we're talking about, yeah.

Mr. FISHER: So I think once you have on the record national policy made in the FISA statute, then I don't think it's appropriate to imply some amendment to it or some change to it by the Use of Force Act, where no member of Congress in debating that ever thought of any change in the FISA statute.

SIEGEL: Let's up the ante a bit here hypothetically. Professor Maggs, what if the president said, `I have the authority to surveil a phone conversation between two people who are known to have some connection to terrorism. One is in New York, and the other one is in Miami. It's in this country'? Does he have the same authority that he would assert here over wiretapping somebody overseas?

Prof. MAGGS: Well, I think, you know, that is a much more difficult question. The best authority that I would cite in support of the president would be the 4th Circuit Court of Appeals' decision earlier this year in the Padilla case. Remember, Jose Padilla was the suspected member of al-Qaeda who was captured after he returned from Pakistan; he was captured at the O'Hare Airport in Chicago. He argued that his detention was different from Hamdi's detention because while Hamdi had been captured in Afghanistan, he was captured in the United States. The 4th Circuit in that case said, `Well, we don't really see a difference when you're dealing with the enemy whether you capture them in the United States or outside of the United States.' Now, of course, that case dealt with detention, but again, assuming that the president has the authority to spy on members of al-Qaeda if the president can also detain them, I don't think that the locus would change that.

SIEGEL: Well, it sounds as though, from what Greg Maggs is saying, that that--the way he reads it, Lou Fisher, the support of the president's Use of Force against al-Qaeda brought along a whole constellation of powers that might be used.

Mr. FISHER: I think that's essentially what this administration has argued, not just in the so-called torture memos, but other actions by the Office of Legal Counsel and the Justice Department; that whenever the president in a time of war is acting as commander in chief, he may do whatever he thinks is necessary, and he cannot be restricted by statute or by treaty. I think that, from what I've read, sounds like the underlying foundation for the spying here.

SIEGEL: One last question--and first to Greg Maggs. What's the closest thing to precedent that you can cite of a president of the United States saying, `I have the power under the Constitution to do this. There is a law that says how I'm supposed to do it, but I simply can do it in defense of our national security'?

Prof. MAGGS: Well, I think the closest case to that would be the steel seizure case. In that case there was a--that was a case that arose during the Korean War, when there was going to be a strike at the steel mills. And Truman seized the steel mills--President Truman seized the steel mills. There was a statute which said how this could be done, but the procedures weren't followed. And the court in that case said that the president did not have that authority. Of course, in this case, I think the facts are slightly different in the sense that the administration at least--what Attorney General Gonzales' statement was was that this was authorized by a statute, by the authorization to use military force.

SIEGEL: Lou Fisher, what's the closest thing to precedent for what President Bush and Attorney General Gonzales have said justifies their action?

Mr. FISHER: I'll stick with the steel seizure case. There's a lot of parallels there, because in District Court, the Justice Department told Judge David Pine, `You cannot control the president. Once the president acts on his emergency powers, nothing can stop him, except impeachment and the ballot box.' And Judge Pine wrote a very stinging decision that carried over to the Supreme Court. And I think last year, with the Hamdi case and with the oral argument, I think there's a replay of that--of an administration defining its powers so broadly that the courts felt that they had an obligation to step in and trim it back.

SIEGEL: Thanks to both of you.

Prof. MAGGS: Thank you very much.

Mr. FISHER: Thank you.

SIEGEL: Greg Maggs, professor of law at George Washington University and the author of "Terrorism and the Law: Cases and Materials," and Lou Fisher of the Congressional Research Service of the Library of Congress, the author of "Presidential War Power."

MICHELE NORRIS (Host): There's a time line of the history of wiretapping and laws aimed at preventing its abuse at our Web site, npr.org.

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